Universal Electronics Corporation

Text (OCR of the scan at left; may contain errors)

Moreover, to the extent that the current status of the LDPE market is a factor in considering whether the public interest requires the requested five year extension, we conclude that the differences in market characterizations between Phillips and the Bureau of Competition are of a minor nature, and relate primarily to long-run future developments. Certainly they do not constitute “substantial questions of fact” within the meaning of Rule 3.72(b) (8) so as to require a further evidentiary hearing.

Accordingly, we do not find any basis in the papers submitted by the parties for granting the requested modification nor do we find any - disputed issue of fact bearing on the modification which would indicate the necessity for taking any evidence or holding any hearings. The papers now before us, both on the original petition and on the petition for reconsideration, adequately set out the arguments of the parties and on the basis of these papers we reaffirm our order of December 14, 1970, and deny the petition for reconsideration. The Commission having fully considered the Petition of Respondent Phillips Petroleum Company for Reconsideration of Order Denying in Part Phillips’ Application for Modification of Consent Order; _ It is ordered, That respondent’s petition for reconsideration be, and hereby is, denied.

UNIVERSAL ELECTRONICS CORPORATION, ET AL.

Docket 8815. Order and Opinion, March 29, 1971 Order denying petition for reconsideration of Commission’s decision on grounds of ambiguity.

, OPrinion OF THE Commission This matter is before the Commission on the petition of respondents for reconsideration of the decision of the Commission in the above captioned matter received February 24, 1971. By its order of January 28, 1971 [78 F.T.C. 265], the Commission adopted as its own the initial decision of the hearing examiner filed November 6, 1970. The respondents, pursuant to Rule 3.55 of the Rules of Practice have now filed a petition for reconsideration of said decision and order. Respondents petition alleges that two-provisions of the order are confusing and ambiguous and that one of the possible readings in each case is illegal. The order paragraphs here are plain on their face. The caption paragraph contains the very specific language “* * * or any other products or any franchises or dealerships in connection therewith.” It is clear from this language that the hearing examiner and the Commission intended that the order not be limited to only those products and francises that were the subject of hearings before ponder.

cALN'Y. iUYCU LY AV a moremernes .

© the. Commission. Nor can t bs seriously: snaintained not to: 0) Timit eee jg illegal. FTC. v. Ruberoid, 343 U.S. 470, 473 (1952). ee MS ~ Respondents: make the same assertion with respect: to o Paragraph e o ab i.é., that: it: is: ambiguous with one construction. illegal. The third oe oS eireuit has. recently: affirmed per curium an order provision identical to the one in question here based upon substantially similar. practices. ee The Court found the wording of said paragraphs not to be too vague ~~ for compliance. Windsor Distributing Go. et al. Vv: FTO, 487 F.9d 4438 (8rd Cir., 197 1). The order compels the: respondent: to refund promptly o all monies to any ‘purchaser. who has been induced. to purchase after the date that: the onder becomes final by practioes. in. violation of the — Respondents5 1 8 1 1 2 872 824 117 83 57.577293 ‘have’5 1 8 1 1 3 999 819 108 80 0.000000 spised5 1 8 1 1 4 1121 818 23 47 46.990662 |5 1 8 1 1 5 1132 857 58 43 86.507523 no5 1 8 1 1 6 1197 850 93 41 67.428818 new.5 1 8 1 1 7 1280 831 2 2 16.771126 _5 1 8 1 1 8 1306 816 183 83 76.227783 questions5 1 8 1 1 9 1500 809 101 65 69.207359 with:5 1 8 1 1 10 1603 809 106 67 25.361420 ‘espe5 1 8 1 1 11 1739 866 17 3 21.299805 ;5 1 8 1 1 12 1785 836 23 26 68.909149 to5 1 8 1 1 13 1870 824 7 7 84.065323 thi2 1 9 0 0 0 527 807 1545 167 -1 3 1 9 1 0 0 527 807 1545 167 -1 4 1 9 1 1 0 527 807 1545 167 -1 5 1 9 1 1 1 527 915 38 49 0.000000 —5 1 9 1 1 2 585 899 102 66 96.659409 orders 1 9 1 1 3 706 931 52 31 77.865868 as:5 1 9 1 1 4 756 907 171 67 86.046410 required5 1 9 1 1 5 933 903 53 58 90.528549 by5 1 9 1 1 6 1006 909 58 33 91.089539 thes 1 9 1 1 7 1084 904 93 51 88.174652 rule..5 1 9 1 1 8 1188 889 81 47 96.266174 Thes 1 9 1 1 9 1276 889 166 55 72.473335 petitions 1 9 1 1 10 1443 888 75 51 95.645355 for.5 1 9 1 1 11 1522 807 172 123 17.553032 cee5 1 9 1 1 12 1840 864 68 54 58.601700 ace5 1 9 1 1 13 1921 855 151 23 9.517220 OAS2 1 10 0 0 0 535 906 1471 146 -1 3 1 10 1 0 0 535 906 1471 146 -1 4 1 10 1 1 0 535 906 1471 146 -1 5 1 10 1 1 1 535 972 43 55 26.045929 bs5 1 10 1 1 2 588 963 203 89 24.073860 cordingly:5 1 10 1 1 3 793 968 29 56 96.669350 is5 1 10 1 1 4 832 958 138 74 94.384766 denied.5 1 10 1 1 5 985 960 63 63 96.754128 An5 1 10 1 1 6 1051 953 53 71 92.437225 ap5 1 10 1 1 7 1119 946 168 83 21.468163 propriate5 1 10 1 1 8 1298 947 100 65 95.359558 orders 1 10 1 1 9 1415 934 239 79 73.104668 accompanies5 1 10 1 1 10 1663 925 79 57 74.689934 this5 1 10 1 1 11 1750 927 151 81 59.311798 opinion:5 1 10 1 1 12 1891 906 115 111 41.191246 ae2 1 11 0 0 0 1177 1000 686 94 -1 3 1 11 1 0 0 1177 1000 686 94 -1 4 1 11 1 1 0 1177 1000 686 94 -1 5 1 11 1 1 1 1177 1033 81 61 70.755936 FOR.5 1 11 1 1 2 1256 1004 350 89 59.352699 RECONSIDERATION,5 1 11 1 1 3 1607 1012 57 69 63.281143 or5 1 11 1 1 4 1661 1000 202 82 35.349243 ‘Drorsion2 1 12 0 0 0 1130 1044 48 43 -1 3 1 12 1 0 0 1130 1044 48 43 -1 4 1 12 1 1 0 1130 1044 48 43 -1 5 1 12 1 1 1 1130 1044 48 43 95.000000 2 1 13 0 0 0 658 1021 476 104 -1 3 1 13 1 0 0 624 1021 510 104 -1 4 1 13 1 1 0 658 1021 476 104 -1 5 1 13 1 1 1 658 1039 127 86 37.356422 Onpen5 1 13 1 1 2 783 1028 197 70 24.975861 “Dexa.5 1 13 1 1 3 988 1021 146 70 35.763466 Perro2 1 14 0 0 0 535 1052 1472 253 -1 3 1 14 1 0 0 535 1052 1472 237 -1 4 1 14 1 1 0 535 1052 1470 142 -1 5 1 14 1 1 1 535 1169 43 30 20.076599 ee5 1 14 1 1 2 638 1122 113 72 96.632164 Upon5 1 14 1 1 3 752 1119 256 70 95.478584 considerations 1 14 1 1 4 1020 1117 45 50 96.873466 of5 1 14 1 1 5 1066 1116 65 63 96.951736 thes 1 14 1 1 6 1140 1101 163 63 84.486275 Petitions 1 14 1 1 7 1304 1103 59 53 96.994942 for5 1 14 1 1 8 1375 1085 301 79 96.339935 Reconsideration5 1 14 1 1 9 1688 1107 39 34 96.903603 of5 1 14 1 1 10 1733 1088 176 59 94.794037 Decision,5 1 14 1 1 11 1895 1052 75 83 15.057289 a85 1 14 1 1 12 1986 1083 19 47 0.000000 '4 1 14 1 2 0 550 1145 1457 101 -1 5 1 14 1 2 1 550 1207 35 39 26.235725 oo5 1 14 1 2 2 592 1189 104 55 44.342228 ‘filed’5 1 14 1 2 3 698 1185 198 59 46.070686 February5 1 14 1 2 4 901 1191 52 38 78.743042 94,5 1 14 1 2 5 967 1181 89 45 91.319382 19715 1 14 1 2 6 1069 1177 70 54 53.896896 by5 1 14 1 2 7 1137 1174 76 48 72.589798 the.5 1 14 1 2 8 1225 1162 221 66 96.721024 respondents5 1 14 1 2 9 1466 1168 41 32 57.612900 in’5 1 14 1 2 10 1523 1159 73 46 60.595417 the:5 1 14 1 2 11 1602 1156 107 54 95.771240 above5 1 14 1 2 12 1722 1145 220 61 37.377399 captioned5 1 14 1 2 13 1957 1151 50 34 0.000000 See4 1 14 1 3 0 568 1196 1414 109 -1 5 1 14 1 3 1 568 1242 170 63 0.000000 matter,5 1 14 1 3 2 754 1243 81 46 73.716782 the.5 1 14 1 3 3 843 1227 237 67 96.672241 Commission,5 1 14 1 3 4 1105 1226 71 46 96.581619 for5 1 14 1 3 5 1178 1224 77 48 95.606094 thes 1 14 1 3 6 1273 1223 146 46 71.443962 reasons5 1 14 1 3 7 1433 1219 61 45 64.520462 sets 1 14 1 3 8 1511 1204 118 56 66.468216 forth5 1 14 1 3 9 1628 1208 45 43 80.893578 in5 1 14 1 3 10 1687 1206 77 44 94.787476 thes 1 14 1 3 11 1785 1204 114 43 78.901405 accom:5 1 14 1 3 12 1926 1196 56 21 23.369110 ee2 1 15 0 0 0 1904 1207 72 77 -1 3 1 15 1 0 0 1904 1207 72 77 -1 4 1 15 1 1 0 1911 1207 65 43 -1 5 1 15 1 1 1 1911 1207 65 43 95.000000 4 1 15 1 2 0 1904 1250 72 34 -1 5 1 15 1 2 1 1904 1250 72 34 95.000000 2 1 16 0 0 0 599 1234 1473 127 -1 3 1 16 1 0 0 559 1232 1513 129 -1 4 1 16 1 1 0 599 1234 1473 127 -1 5 1 16 1 1 1 559 1297 196 47 0.000000 panying5 1 16 1 1 2 772 1288 152 73 96.473022 opinion,5 1 16 1 1 3 936 1316 15 20 55.532143 |5 1 16 1 1 4 936 1283 68 38 96.004807 has5 1 16 1 1 5 1021 1266 216 87 96.465424 determined5 1 16 1 1 6 1245 1265 82 79 96.942764 that5 1 16 1 1 7 1342 1265 61 74 96.989746 thes 1 16 1 1 8 1417 1259 142 74 93.254021 petitions 1 16 1 1 9 1572 1258 1 2 69.623985 s5 1 16 1 1 10 1572 1250 145 79 83.128044 should,5 1 16 1 1 11 1716 1254 46 67 96.895836 be5 1 16 1 1 12 1782 1243 132 76 91.291618 denied.5 1 16 1 1 13 1959 1241 9 53 37.496017 :5 1 16 1 1 14 1990 1234 20 61 0.000000 :5 1 16 1 1 15 2028 1232 44 43 33.894890 oe2 1 17 0 0 0 554 1321 1433 247 -1 3 1 17 1 0 0 546 1321 1438 70 -1 4 1 17 1 1 0 602 1321 1382 66 -1 5 1 17 1 1 1 546 1349 36 42 6.228119 _5 1 17 1 1 2 597 1346 291 53 79.668983 Accordingly,5 1 17 1 1 3 867 1340 22 63 26.164818 _5 1 17 1 1 4 1924 1321 60 23 51.286167 ee3 1 17 2 0 0 554 1327 1433 119 -1 4 1 17 2 1 0 554 1327 1433 119 -1 5 1 17 2 1 1 554 1400 115 46 33.558472 seal,5 1 17 2 1 2 671 1395 54 42 90.665825 tis5 1 17 2 1 3 744 1384 146 56 95.991646 ordered,5 1 17 2 1 4 899 1364 95 66 94.733902 That5 1 17 2 1 5 998 1358 145 73 21.987503 ‘petitions 1 17 2 1 6 1153 1348 52 77 84.037254 a5 1 17 2 1 7 1205 1357 65 55 95.771645 thes 1 17 2 1 8 1272 1340 234 79 25.453537 jespondents5 1 17 2 1 9 1511 1327 186 83 91.141312 Universal5 1 17 2 1 10 1701 1328 219 76 58.907734 Blectronies5 1 17 2 1 11 1921 1360 19 35 32.551865 3 s oe Corporation ‘and Wendell Coker to ‘Feeonsider the decision be, and 3 it. hereby i is s denied. . a FOOD FAIR | STORES, ING. Er A AL. Dooxer sie ce ae H.C. BOHACK 00, INC, ET AL. Docker 81st JEWEL COMPANIES, ING, ET AL. Docker 8788 BORMAN FOOD. STORES, INC, ET Als Dockxr 8789. FIRST NATIO L. STORES, INC. ET AL, Docker 8790 Order, April 12, 197 ane oo nsel to ‘file’ in ‘District Court for. ‘the ‘Nosthern Dis- _ : 2 ‘order. ‘directing General ;

a “trict ‘of: Tilinois documents advising the court that the Commission } has found am , that issuance. of the complaints is in the public interest. ee | SraveMENT, oF > RvaRerrs MacLwrven, ‘ConmasstonEn a : “These matters are béfore the Federal Trade Commission for are x ‘canaidetstion! of the Commission’s S decision to: issue the administrative : ‘complaints | involved here. ; : BULGE BE mae : As provided for in the Order of the United States District Court for the Northern District of Illinois, Eastern Division, in No. 69 C 1673, dated J. anuary 21,1971, entered by J udge J. S. Perry, the Commission gave the parties to whom the administrative complaints have been directed opportunity to be heard in connection with this further reconsideration of the issuance of such complaints. The hearing included the filing of extensive briefs filed in the early part of March, 1971, and oral argument thereon March 23, 1971. On the latter date, the Commission announced it would take the matters under advisement and later announce its decision.

In view of some arguments and statements by others concerning my beliefs about the meaning of the law, it appears that it is appropriate and perhaps desired that I further explain my belief and position on the meaning of the law in question.

Prior to an earlier decision by the Federal Trade Commission to issue these administrative complaints I had made two statements. On one of those occasions I had included in one of my statements the sentence:

Congress did not, as the dissent seems to imply, leave it to the discretion of the Commission to decide, as a matter of policy, whether to enforce Section 2(c) of the Clayton Act when it has “reason to believe” that the statute is being violated (emphasis supplied).

On a later occasion, when. the Commission was issuing these administrative complaints I made another statement in which I included the following sentence:

My decision to vote for the issuance of these complaints is based upon my conviction that their issuance is justified. A member of the Federal Trade Commission who dissented to the Commission’s action in the issuance of these administrative complaints at that time stated “The Commission apparently believes it has no discretion when it comes to squandering scarce resources on bringing such a proceeding.” Apparently that remark, others in the same vein and arguments based thereon made to the courts, and especially in the light of the earlier statements I had made, caused the courts to wonder whether the Commission and T in particular had misconstrued our statutory obligation by assuming we had no discretion to consider whether the issuance of a particular complaint under the particular provision of the law involved would be in the public interest. - At the outset, I wish to say that I have never consciously voted for the Federal Trade Commission to institute a proceeding without my conviction that to institute such a proceeding was to the interest of the public. When I voted to institute the proceedings under reconsideration . at this time, I likewise was convinced that my action was clothed INTERLOCUTORY ORDERS, ETC. LOUD with public interest and was in the public interest. Likewise, I believe this last action of mine in these matters to be in the public interest. Therefore, I have not only considered that the public interest is involved, I have taken it into account and I am convinced that my actions are in accord therewith.

Now, with respect to statements I have made in the past regarding laws entrusted to the Federal Trade Commission for enforcement, let me say this: I do not think that the Federal Trade Commission “as a matter of policy” has discretion to decide not to enforce any one of those laws. That is not to say that I do not believe the Commission has discretion to decide whether to institute or not institute a particular proceeding under any one of those laws. As the parties argued before the Commission on March 23, 1971, in these matters the Commission has on a number of occasions failed to institute proceedings for violation of the provision of law involved here. In a number of those actions of the Commission I participated. I consider that in each such participation I exercised my proper discretion in avoiding the “squandering scarce resources” and unnecessary litigation. Also, I wish to say that I have a strong belief and conviction that a public official in the exercise of discretion should not abuse discretion. Although not involved in these cases nor in our reconsideration of the same, I have come to know some Federal Trade Commissioners, some members of the bar and a few others, who (according to my view of what they say and write) do not believe that the Federal Trade Commission, “as a matter of policy” should enforce Subsection (c) of Section 2 of the Clayton Antitrust Act according to the standards specified therein, but instead if that provision of law is to be enforced at all it should be enforced according to the different standards specified and spelled out in Subsection (a) of Section 2 of the Clayton Antitrust Act. I do not believe that the Federal Trade Commission has discretion “as a matter of policy” to do that. In my view that would . be an abuse of discretion. My simple belief and position in that respect. is based largely on the expressed views of the Congress, the courts and on what I have been able to learn as a student of the law. It is regretable that my small and simple belief and position in the above respect has been so utilized as to trouble so many, so much,. and for so long.

Orvrr Rearrirmine Decision To Issur CompiaInts Respondents herein having filed a motion for summary judgment in the United States District Court for the Northern District of Illinois, Civil Action No. 69 C 1673, requesting the court to permanently enjoin the Commission from further proceedings upon the ad-